Do I Teach Too Many Old Cases?

In the past few years, I have received a few complaints in my student evaluations that I teach too many old cases.  This year, there were more such complaints than ever before.  There aren't that many; only a handful out of 75 students in my contracts courses, but the complaint is new and gaining steam.  One student helpfully defined "old" as cases from the "19th and 20th centuries."  It's official.  I'm old.

The good ship Peerless as imagined by my former student, Justin Vining

These comments led me to go back through my reader and have a look.  The oldest case I teach is Mills v. Wyman, from 1825.  I teach three cases decided in 2023.  I only teach ten cases (of fifty) from the 20th century, and the median case dates from 1968.  Fifty cases total is not a lot of cases.  I supplement my reader with an Brian Blum's Examples & Explanations book, so the students get a lot of hypotheticals that are generally in a contemporary setting.  One interesting phenomenon that I have noticed since I started supplementing cases with problems is that students have difficulty keeping straight which fact patters are real and which are hypothetical.  So, from my defensive crouch, I could argue that a supplement my two score and ten vintage cases with at least that many problems set in the 21st century.

My reader includes five cases from the 19th century: Mills v. Wyman, Kirksey v. Kirksey (1845), Raffles v. Wichelhaus (1864), Hamer v. Sidway (1891), and Rickets v. Scothorn (1898).  I love these cases.  They all teach really well and lead to great class discussions.  There is rich literature and lore about all of them.  Is that reason enough to continue using them?  An additional argument in their favor is that they are all good law.  It would be hard for me to abandon these cases, even if I knew of more recent cases that covered the same ground, but I don't.  Perhaps that is because I have been complacent and haven't bothered to look, but it may be that these cases have come to occupy the field.  Rather than engaging in the kind of analysis that these cases engage in, modern courts simply cite to them or to equally musty old cases that lack their compelling facts or well-written opinions.

Cardozo Cup Competition Entry by my former student, Jeff Miller

I may be on shakier ground with the next half-century.  I teach eleven cases published between 1901 and 1935.  Judge Cardozo accounts for four of them.  Paraphrasing Ben Jonson, I might confess, "My sin was too much hope of thee, lov'd Judge."  I could drop Lady Duff, as I pair that case with B.L. Lewis Productions.  v. Angelou, but the latter case spends so much time talking about Lady Duff, it seems a shame not to share the original with my students.  Is there a better case for charitable subscriptions that Allegheny College?  A better discussion of fatally incomplete contracts than Sun Printing?  Perhaps.

There is still a part of the course that serves to contrast the more formalist approach of the early 20th century to our more contextual approach since the adoption of the Uniform Commercial Code and the Restatement Second.  I suppose I could drop some of the material on formalism.  My fear is that there are still jurisdictions that retain a commitment to formalism.  There is also a formalist wind blowing through other regions of our jurisprudence.  Who is to say it will not invade the province of private law as well?  

I think the students who complain about the old cases do not appreciate how hard it is to find cases that teach well and state the law clearly.  As I said, I added three new cases from 2023 in my last version of Contracts I.  I don't know if any of them have staying power.  The emoji case stands the best shot, but it is a Canadian case and so has certain oddities about it.  Perhaps a red-blooded American case on emojis as acceptance/signatures will come along soon. 

When I teach Sales, I don't teach any cases that are older that Article 2 itself.  The cases I have selected are a motley crew.  Sometimes I teach against the cases, because I think the judges were simply incompetent in their understanding of either Article 2 or the transactions or both.  Electricity is not a good?  Nonsense!  At other times, the cases are well reasoned, in my view, but state only a majority view not accepted in all jurisdictions (love ya, 2-207 knock-out rule for different terms.!).  The old cases that have withstood the test of time are, at least sometimes, unavoidable in a common-law system based on precedent.  I wish there were more such definitive cases that governed Article 2.  

I will say this in favor of the old chestnuts.  I sometimes interact with alumni, and when I tell them I teach contracts, they sometimes claim no knowledge or memory of the course.  But when I remind them of some of my favorite cases, they become gleeful.  I am a communitarian, and so I love that lawyers across generations can bond over these old cases, even if just involves rolling our eyes about Pennoyer v. Neff.  In my past life as an intellectual historian, I participated in debates about canonical literary texts in which white male voices predominate.  I get that, and I am all for a more inclusive canon, but I also know how I have benefited from having experienced Columbia's core curriculum.  I went to college a midwestern yokel, the product of a decent public school but never having read or been exposed to much of the canon.  The eduction I received has facilitated connections and conversations that would never have otherwise been possible.  And non-canonical works routinely reference canonical works, permitting those familiar with the canon to appreciate the layers of meaning and the reworking of traditional material on a different level from those who just miss the references.  I want my students to get the jokes and appreciate the references.

That said, I just added a case to my syllabus for this coming semester that I discovered through work on the blog.  I hope it's a keeper!